RENDERED: JANUARY 20, 2022

TO BE PUBLISHED 

Supreme Court of Kentucky

2021-SC-0100-DGE

M.S.S. APPELLANT

ON REVIEW FROM COURT OF APPEALS

NO. 2020-CA-0995

WARREN CIRCUIT COURT NO. 18-AD-00043

V.

J.E.B., D.J.B., AND K.K.F.S., A CHILD APPELLEES

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

AFFIRMING

M.S.S. (“Mother”) requested review of an opinion by the Court of Appeals

affirming the Warren Family Court’s order concerning the adoption of her 

minor child, K.K.F.S. (“Child”). Following a March 14, 2019, hearing, the 

Warren Family Court entered a judgment on May 21, 2020, terminating 

Mother’s parental rights and granting to Appellees, J.E.B. and D.J.B., the 

adoption of Child without parental consent based on its finding that Mother 

abandoned Child for a period of not less than 90 days. The Court of Appeals 

affirmed that judgment, finding that clear and convincing evidence supported 

the family court’s determination that Child was abandoned.

We granted discretionary review and directed the parties to address

specifically whether the Cabinet for Health and Family Services (“the Cabinet”)
2

was required to initiate an action to involuntarily terminate the biological 

parents’ parental rights under Kentucky Revised Statutes (KRS) Chapter 625 

before the filing of a petition for adoption by J.E.B. and D.J.B. After careful 

review, we hold that the Cabinet was not required to initiate an action for 

involuntary termination of parental rights before the filing of a petition for

adoption and the family court did not err in granting the petition for 

nonconsensual adoption, thereby terminating Mother’s parental rights.

Consequently, we affirm the Court of Appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mother is the biological mother of Child, who was born in January 2011. 

Mother has a long history of drug addiction and criminal convictions that have 

greatly interfered with her ability to be a part of Child’s life.

Mother was first arrested for trafficking and first-degree possession of a 

controlled substance in 2009, before Child’s birth. In October 2011, nine 

months after Child’s birth, Mother was convicted of wanton endangerment and 

bail jumping. She was granted shock probation in 2012, but she was then 

convicted of possession of marijuana and sentenced to one and one-half years’

imprisonment. In 2013, she was convicted of possession of methamphetamine 

and sentenced to another year of imprisonment. And in 2015, she was 

convicted of promoting contraband and sentenced to another two and one-half 

years’ imprisonment. She was released in 2017 and has remained out of prison 

since then.
3

Before her incarceration in 2011, Mother voluntarily granted 

guardianship of Child to Child’s maternal grandmother. However, in 2012, the 

maternal grandmother tested positive for various drugs, and the Cabinet filed a 

dependency, neglect, and abuse (“DNA”) petition against her. As a result, Child 

was temporarily placed in the custody of J.E.B., a first cousin of Mother, and 

D.J.B., his wife, the Appellees in this case, in February 2013. The family court

permitted Mother to visit Child at the discretion of the J.E.B. and D.J.B. 

Ultimately, J.E.B. and D.J.B. received permanent custody of Child on 

December 15, 2014.

On April 3, 2018, J.E.B. and D.J.B. filed a petition in the Warren Family 

Court to terminate Mother and the biological father’s parental rights and to 

adopt Child without the consent of the biological parents under KRS 

199.502(1). The family court set the petition for a final hearing on March 14, 

2019.

At the hearing, Mother testified that she had not had any contact with 

Child since before November 24, 2014, the day her son was born, despite her 

remaining out of jail from November 2014 to December 2015. However, Mother

testified that she attempted to visit Child multiple times during this period, but 

Appellees would not allow her to do so and would threaten to call the police if 

she came to their house. She also asserted that she was in the hospital with 

her other child, a son, for a period of time after his birth in November 2014 and 

was unable to visit Child during that period. She testified that, before

November 2014, she attended visitation every time she could and, when 
4

visitation was relocated to child’s maternal aunt’s house in early 2013, she 

brought clothes and other items for Child, but the maternal aunt would not 

give them to Child. Mother also asserted that, while in jail, she wrote letters to 

Appellees in which she asked about Child and enclosed drawings for Child.

Mother testified that, after she was paroled in 2017, she contacted Appellees 

about visiting Child, but they denied her request. She filed a petition for 

visitation on February 1, 2018.

Mother also testified that she had made significant improvements in her 

life since her last incarceration began in November 2015. She has remained 

sober since that time, and, since her release in 2017, she has maintained 

steady, gainful employment and continued making child-support payments. 

She has also regained joint custody of her son and plans to buy a house soon. 

Because Child does not know Mother, Mother proposed a therapeutic 

reunification and has attended sessions with a licensed psychologist. 

J.E.B. testified that, when he first gained temporary custody of Child in 

February of 2013, visitation took place at his house but was soon relocated to 

maternal aunt’s house because Mother would arrive late or would not attend at 

all. He testified that, even after visitation was relocated, Mother frequently 

missed or arrived late to visitation. He estimated that Mother missed 70 to 80 

percent of visitations during 2013 and 2014, and he stated that she often 

canceled last-minute.

J.E.B. acknowledged that on one occasion Mother brought clothes for 

Child to Appellees’ house during visitation, but the clothes were too large, and 
5

he did not give them to Child. He also testified that he could only remember 

Mother bringing a bag of candy to visitation at the aunt’s house on one 

occasion. J.E.B. also acknowledged that Mother requested to have some 

contact with Child after November 2014 but only on holidays and Child’s 

birthday. He also stated that he remembered receiving a couple of letters in the 

mail from Mother, but he did not give any of them to Child and eventually 

threw them away.

Child’s maternal aunt also testified at the hearing and stated that she 

could only remember Mother showing up to visitation at her house on two 

occasions. She stated that Mother brought milkshakes for one of the visits and 

brought a bag of items for Child to play with at the other. The aunt stated that 

she could recall Mother calling twice to cancel visitation because of purported 

flat tires and once to cancel because she was in a fight with Child’s maternal 

grandmother.

Shortly after the hearing, Child’s guardian ad litem (“GAL”) filed a 

supplemental report recommending that the court dismiss the petition for 

adoption and termination of parental rights.1 In the GAL’s opinion, although 

Mother was not present for significant periods of Child’s life, her efforts to be 

involved with Child at various points were impeded by J.E.B. and D.J.B. She 

further opined that Mother had a reasonable expectation of improvement in her 

 

1 The GAL recommended dismissing the petition only with respect to Mother

and expressly stated no objection to the family court terminating the parental rights of 

the biological father.
6

parental conduct considering the significant life improvements she has made 

since her 2017 release from prison.

The family court ultimately granted J.E.B. and D.J.B.’s petition, 

terminating Mother and the biological father’s parental rights and granting the 

adoption of Child to J.E.B. and D.J.B.

2 Specifically, the court found that, under 

KRS 199.502(1)(a), Mother had abandoned Child for a period of not less than 

90 days because, during periods of time when Mother was not in custody, she 

did not devote herself to parenting Child. Mother appealed the family court’s 

judgment, but the Court of Appeals affirmed, concluding that clear and 

convincing evidence supported the family court’s finding of abandonment. We 

granted discretionary review and now affirm the Court of Appeals.

II. STANDARD OF REVIEW

“An adoption without the consent of a living biological parent is, in effect, 

a proceeding to terminate that parent’s parental rights.”3 Parental rights are a 

“‘fundamental liberty interest protected by the Fourteenth Amendment’ of the 

United States Constitution.”4 As such, “termination of parental rights is a grave 

action which the courts must conduct with ‘utmost caution.’”5 So, “to pass 

 

2 Child’s biological father did not appeal the family court’s judgment.

3 B.L. v. J.S., 434 S.W.3d 61, 65 (Ky. App. 2014) (citing Moore v. Asente, 110 

S.W.3d 336 (Ky. 2003)).

4 R.P. v. T.A.C., 469 S.W.3d 425, 426–27 (Ky. App. 2015) (quoting Santosky v. 

Kramer, 455 U.S. 745, 753 (1982)).

5 Id. (quoting M.E.C. v. Commonwealth, Cabinet for Health & Fam. Servs., 254 

S.W.3d 846, 850 (Ky. App. 2008)).
7

constitutional muster, the evidence supporting termination must be clear and 

convincing.”6

That said, trial courts are afforded a “great deal of discretion” in 

determining whether termination of parental rights is appropriate.

7 “A family 

court’s termination of parental rights will be reversed only if it was clearly 

erroneous and not based upon clear and convincing evidence.”8 “Clear and 

convincing proof does not necessarily mean uncontradicted proof. It is 

sufficient if there is proof of a probative and substantial nature carrying the 

weight of evidence sufficient to convince ordinarily prudent minded people.”9

Under this standard, we are “obligated to give a great deal of deference to the 

family court’s findings and should not interfere with those findings unless the 

record is devoid of substantial evidence to support them.”10

Additionally, “[s]ince adoption is a statutory right which severs forever 

the parental relationship, Kentucky courts have required strict compliance with 

the procedures provided in order to protect the rights of the natural parents.”11

 

6 Id. (quoting Santosky, 455 U.S. at 769–70).

7 M.P.S. v. Commonwealth, Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky. 

App. 1998).

8 M.A.C. v. E.A., No. 2020-CA-0087-ME, 2021 WL 2878347, at *2 (Ky. App. July 

9, 2021) (citing Commonwealth, Cabinet for Health & Fam. Servs. v. T.N.H., 302 S.W.3d 

658, 663 (Ky. 2010); Kentucky Rule of Civil Procedure (CR) 52.01).

9 T.N.H., 302 S.W.3d at 663.

10 Id. (citing K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky. App. 2006)).

11 Day v. Day, 937 S.W.2d 717, 719 (Ky. 1997).
8

III. ANALYSIS

Mother argues that the family court erred in terminating her parental 

rights and granting the petition for adoption because the Cabinet did not 

initiate a proceeding to terminate her parental rights before J.E.B. and D.J.B.

filed their petition for adoption. She further argues that the family court erred 

because its finding that she abandoned Child under KRS 199.502(1)(a) was not 

supported by clear and convincing evidence and conflicts with other factual 

findings in the judgment of adoption.

A. The Cabinet for Health and Family Services was not required to 

initiate an involuntary termination of parental rights action before 

the J.E.B. and D.J.B. filed a petition for adoption without the 

consent of the biological parents.

We address first the issue which we granted review to consider and 

which we specifically directed the parties to brief: whether the Cabinet was 

required to initiate an involuntary termination of parental rights action under 

KRS Chapter 625 before J.E.B. and D.J.B.’s filing of a petition for adoption.12

We conclude that the Cabinet was not so required.

 

12 Although not argued in the courts below, we directed the parties to brief this 

issue on our motion. Specifically, this Court’s Order Granting Discretionary Review 

included the following directive:

Among the issues to be specifically addressed regarding the involuntary 

termination of the parental rights of the biological parents herein, are 

whether the Appellees may initiate the involuntary termination of 

parental rights action, or whether the Cabinet for Health and Family 

Services must do so, pursuant to KRS Chapter 625, prior to the filing of 

a petition for adoption by the Appellees.

Per our request, the parties dutifully argued both sides.
9

Appellees filed a petition seeking both involuntary termination of Child’s 

biological parents’ parental rights and the adoption of Child without the 

consent of the biological parents. Generally, involuntary termination 

proceedings are governed by KRS Chapter 625.13 While proceedings for

involuntary termination may be initiated by a number of different entities, 

including the Cabinet,

14 the Cabinet must always be made a party to the 

action.

15

Adoptions, however, are governed by KRS Chapter 199.16 That KRS 

chapter encompasses both adoptions with and without the consent of the 

biological parents.17 While consensual adoptions, governed by KRS 199.500, 

require that “[t]he parental rights of the parents have been terminated under 

KRS Chapter 625[,]” no such requirement exists for adoptions without the 

consent of the biological parents, which are governed by KRS 199.502.18 In 

fact, KRS 199.502 makes clear that, “[i]f granted, the adoption itself terminates 

 

13 See KRS 625.050.

14 KRS 625.050(3) (“Proceedings for involuntary termination of parental rights 

may be initiated upon petition by the cabinet, any child-placing agency licensed by the 

cabinet, any county or Commonwealth's attorney or parent.”).

15 KRS 635.060 (“In addition to the child, the following shall be the parties in an 

action for involuntary termination of parental rights: . . . [t]he petitioner; . . . [t]he 

[C]abinet [for Health and Family Services], if not the petitioner; and . . . the biological 

parents, if known and if their rights have not been previously terminated.”). 

16 See KRS 199.470.

17 See KRS 199.500 (governing consensual adoptions); KRS 199.502 (governing 

adoptions without consent of the biological parents).

18 Additionally, a family court may grant an adoption without the consent of the 

biological parents “if it is pleaded and proved as a part of the adoption proceedings 

that any of the provisions of KRS 625.090 exist with respect to the child.” KRS 

199.500(4).
10

the parental rights of the biological parents.”19 As such, a plain reading of KRS 

199.500 and KRS 199.502 leaves no doubt that the Cabinet is not required to 

initiate an involuntary termination of parental rights action under KRS Chapter 

625 before the filing of a petition for adoption without parental consent under 

KRS 199.502.

This statutory structure led the Court of Appeals to conclude correctly 

that when a petitioner seeking adoption files a dual petition seeking both 

involuntary termination of parental rights of the biological parents and an 

adoption without the consent of the biological parents, “the adoption 

supersedes the termination because KRS Chapter 199 encompasses Chapter 

625.”20 In such cases, “KRS 199 governs the entirety of the . . . petition.”21

While, in this case, J.E.B. and D.J.B.’s petition sought both adoption 

without consent of the biological parents and termination of the biological 

parents’ parental rights, the petition specified that it was seeking adoption and 

termination only under KRS 199.502. The family court’s judgment further 

makes clear that the adoption was granted under KRS 199.502, and only upon 

entry of the judgment of adoption were Child’s biological parents’ rights 

terminated, again under KRS 199.502. As such, the Cabinet was not required 

 

19 C.J. v. M.S., 572 S.W.3d 492, 497 (Ky. App. 2019) (citation omitted); KRS 

199.520(2) (“Upon granting an adoption, all legal relationship between the adopted 

child and the biological parents shall be terminated except the relationship of a 

biological parent who is the spouse of an adoptive parent.”).

20 E.K. v. T.A., 572 S.W.3d 80, 83 (Ky. App. 2019) (citing Wright v. Howard, 711 

S.W.2d 492, 495 (Ky. App. 1986)).

21 Id.
11

to file an action to involuntarily terminate the parental rights of Child’s 

biological parents under KRS Chapter 625 before the Appellees filed their 

petition to adopt Child. It was sufficient for the Appellees to proceed under KRS

199.502 alone.

Furthermore, the Cabinet is not necessarily required to be made a party 

to an action for the adoption of a child. KRS 199.470 provides that “any person 

who is eighteen . . . years of age and who is a resident of this state or who has 

resided in this state for twelve . . . months next before filing may file a petition 

for leave to adopt a child.” And KRS 199.480, which lists all parties defendant 

required in an adoption, states that the Cabinet is only required to be a party 

defendant “if the care, custody, and control of the child has been transferred to 

the [C]abinet . . . .”22 Because this is an adoption case, and KRS 199 governs 

the entirety of the proceeding, the Cabinet was also not required to be joined as 

a party.23

Mother directs the Court to an unpublished opinion of the Court of 

Appeals, K.N. v. R.P.,

24 to support her argument that, notwithstanding the 

provisions of KRS Chapter 199, the requirements of KRS Chapter 625 should 

 

22 KRS 199.480(1)(d).

23 The Cabinet is, however, required to place a child for adoption—if not done so 

by a child-placing institution or agency or with written approval of the secretary for 

health and family services—before a petition for adoption can be filed. KRS 199.470(4). 

And the Cabinet, “or any person, agency or institution designated by it or the court” is 

required to investigate and report in writing to the court whether the contents of the 

petition are true, whether the proposed adoptive parents are fit to care for the child, 

and whether the adoption is in the best interest of the child. KRS 199.510(1). The 

Cabinet fulfilled both requirements in this case.

24 No. 2007-CA-000181-MR, 2008 WL 275106 (Ky. App. Feb. 1, 2008).
12

have been followed because, at its core, J.E.B. and D.J.B.’s petition sought to 

involuntarily terminate parental rights. But K.N. v. R.P. does not stand for the 

proposition that a proceeding to terminate parental rights initiated by the 

Cabinet must take place before a nonconsensual adoption proceeding.

Instead, in K.N. v. R.P., great-grandparents filed a dual petition seeking 

to both terminate the parental rights of their minor great-grandchildren’s 

biological parents and adopt the great-grandchildren.25 However, the greatgrandparents “sought a termination of the parents’ rights before adopting the 

children.”26 The family court first held a trial on the termination proceedings, 

and, only after terminating parental rights and making the children available 

for adoption, considered and granted the great-grandparents’ petition for 

adoption.27

The Court of Appeals reversed, finding that “[c]ontrary to the proceedings 

which the General Assembly allows under KRS 199.502 for adoption without 

parental consent, this case was not practiced under nor did it procedurally 

follow KRS 199.502.”28 Rather, the court determined that the adoption 

proceedings were conducted under KRS 199.500(1)(b), which allows for

adoption only after termination under KRS Chapter 625 occurs.

29 And because 

the great-grandparents lacked standing to initiate the termination proceedings 

 

25 Id. at *1.

26 Id. at *11.

27 Id.

28 Id.

29 Id. (citing KRS 199.501(1)(b)).
13

under KRS 625.050(3), the family court erred in entering a judgment 

terminating parental rights.30

By contrast, termination and adoption were not treated as two separate 

causes of action in this case. Rather, the petition for adoption without parental 

consent was requested, heard, and granted in accordance with KRS 199.502, 

and Mother’s parental rights were terminated as a result. As such, we find

Mother’s argument on this point unpersuasive.

Mother also emphasizes that the court in K.N. “made it clear that an 

individual whose parental rights are sought to be terminated is entitled to not 

only an enforcement of statutory requirements in the proceedings, but to 

constitutional due process protections that are afforded when the state plays a 

role.” It is true that the court in K.N. noted that parental rights are accorded 

due process protection under the Fourteenth Amendment to the United States 

Constitution,

31 but that is beside the point. The proceedings in K.N. were 

flawed because the provisions of KRS Chapter 625 were not complied with, 

despite the family court entering a judgment of adoption under KRS 

199.500(1)(b). The proceedings were not flawed because the Cabinet did not 

initiate a termination proceeding before the filing of a petition for 

nonconsensual adoption under KRS 199.502. In fact, the K.N. opinion suggests 

KRS 199.502 is the proper avenue for adoption proceedings initiated by a 

 

30 Id. at *12–13.

31 K.N., 2008 WL 75106, at *10.
14

private party that result in termination of parental rights.32 As such, K.N. does 

not lead this Court to conclude the proceedings in this case were in any way 

constitutionally deficient. And, beyond referring this Court to the constitutional 

discussion in K.N., Mother has not articulated a constitutional challenge to 

KRS 199.502 sufficient to warrant this Court’s review.

Accordingly, the Cabinet was neither required to be a party to the 

adoption action nor required to file an action to involuntarily terminate the 

parental rights of Child’s biological parents before the Appellees filed their 

petition to adopt Child under KRS 199.502.

The dissent finds KRS 199.502 unconstitutional on due process grounds. 

While we acknowledge that legitimate questions as to the constitutional 

sufficiency of the procedures set out in KRS 199.502 may exist, we do not 

believe those arguments are properly before us today.

The dissent identifies two perceived issues with the processes set out in 

KRS 199.502. First, the dissent asserts that KRS 199.502 presents a 

“constitutional end-run created by a statutory loophole” because it allows a 

party to seek an adoption without consent, which terminates the parental 

rights of the biological living parents, without having to prove all three of the 

requirements for terminating parental rights under KRS 625.050: “(1) the child 

is found or has been adjudged to be an abused or neglected child as defined in 

 

32 See K.N., 2008 WL 75106, at *10 (“Contrary to the proceedings which the 

General Assembly allows under KRS 199.502 for adoption without parental consent, 

this case was not practiced under, nor did it procedurally follow, KRS 199.502.”).
15

KRS 600.020(1); (2) termination of the parents’ rights is in the child’s best 

interests; and (3) at least one of the termination grounds enumerated in KRS 

625.090(2)(a)-(j) exists.”33 In essence, the dissent argues the findings 

necessary to grant an adoption, thereby terminating parental rights, when a 

party petitions the court under KRS 199.502 are less onerous than the findings 

the judge must make simply to terminate parental rights in an action brought 

by the Cabinet34 under KRS Chapter 625.

35 And second, the dissent states 

that KRS 199.502 is unconstitutional because, in effect, it permits private 

individuals to seek termination of parental rights by way of adoption.

However, the dissent fails to identify why the protections afforded to 

parents whose rights are sought to be terminated by way of an adoption

without consent are constitutionally deficient, even assuming those protections 

are “significantly lower” than those afforded to parents subject to involuntary 

 

33 Commonwealth, Cabinet for Health and Fam. Servs. v. K.H., 423 S.W.3d 204, 

209 (Ky. 2014).

34 As noted herein, KRS 625.050(3) permits “the cabinet, any child-placing 

agency licensed by the cabinet, any county or Commonwealth's attorney or parent” to 

bring a petition to involuntarily terminate parental rights.

35 The dissent describes the protections afforded to non-consenting parents 

whose rights are sought to be terminated under KRS 199.502 as “significantly lower” 

than those afforded to parents whose rights are sought to be terminated under KRS 

Chapter 625. However, because the grounds set forth in KRS 625.090(2)(a)-(j) and KRS 

199.502(1)(a)-(j) are substantially the same, and because in both termination and 

adoption the trial court must determine that such action is in the best interest of the 

child, KRS 199.520(1); KRS 625.090(c), we note that a party seeking termination 

under KRS Chapter 625 need only prove one more pertinent element than is required 

of a party seeking to adopt under KRS 199.502: the child is found or has been 

adjudged to be an abused or neglected child as defined in KRS 600.020(1). See A.K.H. 

v. J.D.C., 619 S.W.3d 425, 427 (Ky. App. 2021) (‘[O]ne of the fundamental differences 

between termination of parental rights cases and adoption without consent cases is 

the absence of an abuse or neglect requirement in the adoption without consent 

statute.”).
16

termination under KRS 625.050. Similarly, the dissent does not identify why 

the fact that a private party may petition the court for an adoption without

consent, which if granted, simultaneously terminates the rights of the 

biological living parents, renders that process constitutionally deficient. And, 

importantly, those arguments were never presented to this Court by either 

party. As described above, Mother presented only a vague argument that the 

process for adoption without consent contained in KRS 199.502 somehow runs 

afoul of constitutional due process protections, relying on a somewhat 

irrelevant discussion of due process in K.N.36 But that argument is neither 

specific nor clear. This Court will not develop arguments on behalf of the 

parties, especially arguments challenging the constitutionality of a wellestablished statutory mechanism for adoption in the Commonwealth.37

B. The family court’s findings were supported by clear and convincing 

evidence.

Under KRS 199.502(1), “an adoption may be granted without the consent 

of the biological living parents of a child if it is pleaded and proved as part of 

the adoption proceeding that any of the following [nine] conditions exist with 

respect to the child[.]” Appellees’ petition for adoption relied on the conditions

in subsections (a), (e), and (g), which state:

(a) That the parent has abandoned the child for a period of not less 

than ninety (90) days;

. . . 

 

36 2008 WL 275106, at *1.

37 KRS 199.502 was enacted in 1994.
17

(e) That the parent, for a period of not less than six (6) months, has 

continuously or repeatedly failed or refused to provide or has been 

substantially incapable of providing essential parental care and 

protection for the child, and that there is no reasonable 

expectation of improvement in parental care and protection, 

considering the age of the child;

. . . 

(g) That the parent, for reasons other than poverty alone, has 

continuously or repeatedly failed to provide or is incapable of 

providing essential food, clothing, shelter, medical care, or 

education reasonably necessary and available for the child's wellbeing and that there is no reasonable expectation of significant 

improvement in the parent's conduct in the immediately 

foreseeable future, considering the age of the child[.]38

The family court found Appellees had failed to meet their burden of proof 

with respect to subsections (e) and (g). Specifically, the court found that, “due 

to the significant changes and progress [Mother] has made,” it was not 

persuaded by clear and convincing evidence that there is no reasonable 

expectation of significant improvement in Mother’s parental conduct in the 

immediately foreseeable future or in parental care and protection, considering 

the age of the child.

However, the family court concluded that Mother had abandoned Child 

for a period of 90 days under subsection (a), and it granted the Appellees’

petition on that basis. More specifically, the family court found that, “during 

periods of time when [Mother] was not in custody, she did not devote herself to 

parenting Child.” The family court noted that, even though Mother was not 

incarcerated from November 2014 to November 2015, she had no contact with 

 

38 KRS 199.502(a),(g),(e).
18

Child, and instead engaged in activities that led to her re-incarceration. The 

court summarized Mother’s efforts as “too little and too late.”39

On appeal, Mother first argues that the family court’s finding of 

abandonment under subsection (a) is inconsistent with its findings with 

respect to subsection (e) and (g). She contends that the family court could not 

have found both that it was not persuaded by clear and convincing evidence 

that that there is no reasonable expectation of significant improvement in 

Mother’s future conduct and parental care and that she had abandoned Child 

for a period of not less than 90 days. 

But we find this argument unpersuasive, as the family court’s finding 

concerning Mother’s reasonable expectation of improving her ability to parent 

in the future does not conflict with its finding of abandonment. Notably, 

subsections (e) and (g) require the court to consider a parent’s future conduct 

and ability to parent, even despite any failure to provide parental care in the 

past. However, subsection (a) contains no requirement that the court consider 

the parent’s future conduct and requires only a straightforward finding that the 

parent abandoned the Child for a period of 90 days or more.

Finally, Mother argues that the family court’s finding of abandonment 

under subsection (a) is unsupported by clear and convincing evidence. 

Particularly, she notes that the family court failed to mention in its findings of 

fact and conclusions of law the GAL’s supplemental report, which 

 

39 The Court did so by quoting A.F. v. L.B., 572 S.W.3d 64, 74 (Ky. App. 2019).
19

recommended the court dismiss the petition with respect to Mother because

Appellees thwarted Mother’s attempts to contact Child and because Mother

had a reasonable expectation of significant improvement based on her conduct 

since her 2017 release.

Again, we find this argument unpersuasive, as the record contains 

sufficient proof to find by clear and convincing evidence that Mother

abandoned Child. As the family court noted in its findings of fact and 

conclusions of law, “abandonment is demonstrated by facts or circumstances 

that evidence a settled purpose to forgo all parental duties and relinquish all 

parental claims to the child.”40 Furthermore, while “[i]ncarceration alone can 

never be construed as abandonment as a matter of law[,] . . . absence, 

voluntary or court-imposed, may be a factor to consider in determining 

whether the children have been neglected.”41

At the hearing, Mother admitted to being incarcerated for five of the first 

eight years of Child’s life and that she has had no contact with Child since 

November 2014. The family court heard testimony that Mother canceled or 

failed to attend the vast majority of visitations, seeing Child only sporadically 

from February 2013 to November of 2014. Although Mother testified that she 

requested to have contact on multiple occasions after November 2014, J.E.B. 

 

40 O.S. v. C.F., 655 S.W.2d 32, 34 (Ky. App. 1983).

41 J.H. v. Commonwealth, Cabinet for Human Res., 704 S.W.2d 661, 663–64 (Ky. 

App. 1985).
20

testified that she did so only on holidays and birthdays, and she provided little 

notice of the proposed visitations. 

While incarceration alone is insufficient to support a finding of 

abandonment, the family court ultimately heard a significant amount of 

evidence to support its finding that Mother intended to forgo her parental 

duties and relinquish her parental claims to Child even during periods when 

she was not incarcerated. This evidence and the record as a whole clearly and 

convincingly support the family court’s findings that Mother abandoned child 

for a period of not less than 90 days. Accordingly, the family court did not err 

in granting Appellees’ petition for adoption and termination of Mother’s 

parental rights to Child under KRS 199.502(1)(a).

IV. CONCLUSION

For these reasons, the Court of Appeals’ decision upholding the family 

court’s judgment is affirmed.

All sitting. Hughes, Keller, Nickell, and VanMeter, JJ., concur. Lambert, 

J., dissents by separate opinion, in which Conley, J., joins.

LAMBERT, J., DISSENTING: Respectfully, I must dissent. This Court 

has recognized that substance use disorder (SUD) is a disease. We say that we 

support those who suffer from the crippling effect of the disease in their 

recovery. And, we say that we support reunification of parent and child. Yet, a 

mother who is nearly five years into recovery from SUD and now lives a stable 

life has been stripped of her parental rights, even though: 1) the Cabinet for 

Health and Family Services did not seek to terminate those rights; 2) a mental 
21

health professional testified that termination would be against her child’s best 

interests; and 3) the child’s attorney opposed the termination of her parental 

rights. 

The underlying facts of this case are not that uncommon. A relative of a 

formerly drug-addicted parent has been granted permanent custody of that 

parent’s child. That parent has now overcome SUD, gotten her life back on 

track, and sought visitation with her child through an order of the court. This 

motivated the custodians to sever all ties by the filing of this action. Though 

M.S.S. certainly has not been a model mother, she has worked diligently in 

recent years to get her life back on track. 

The law of this case, however, reveals a deep constitutional defect in the 

way our Courts have now interpreted the power of an individual to undermine 

the parental rights of any parent. We are presented with a straight-forward 

issue that has a nuanced and complex answer: must an involuntary 

termination of parental rights (TPR), which can only be brought by the 

Commonwealth, precede an order for adoption when a natural parent contests 

that adoption, or may a TPR and an adoption occur simultaneously with 

limited involvement from the Commonwealth and without the consent of the 

biological parent? The majority endorses and adopts the latter approach. I 

disagree. Such an approach empowers private individuals to unilaterally assert 

the unfitness of natural parents and does not comport with the Kentucky 

Constitution or the United States Constitution. The majority’s opinion 

muddies further the already turbulent procedural waters that plague this area 
22

of family law. Additionally, I believe the trial court’s findings of fact were 

clearly erroneous. I, therefore, dissent.

“The rights to conceive and to raise one's children have been deemed 

essential, basic civil rights of man, and rights far more precious than property 

rights.”42 The state’s power to authorize or initiate the severance of the legal 

relationship and the accompanying bond between natural parent and child 

ought to be—and has long been—scrutinized with the utmost precision and 

care.43 Issues concerning the termination of a biological parent’s right to rear 

and raise their child are of the highest constitutional concern.44 

In the instant case, private individuals have sought to employ the levers 

of government to sever a parent/child relationship by way of simultaneous 

 

42 Stanley v. Illinois, 405 U.S. 645, 651 (1972) (internal quotation marks, 

brackets, ellipsis, and citations omitted).

43 See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982) (stating the Court 

traditionally recognizes that “freedom of personal choice in matters of family life is a 

fundamental liberty interest protected by the Fourteenth Amendment.”); Armstrong v. 

Manzo, 380 U.S. 545, 550 (1965) (stating due process requires notice and a hearing in 

a TPR action, because “the result of the judicial proceeding [would be] . . . 

permanently to deprive a legitimate parent of all that parenthood implies.”); Stanley,

405 U.S. at 651 (“It is plain that the interest of a parent in the companionship, care, 

custody, and management of his or her children ‘come[s] to this Court with a 

momentum for respect lacking when appeal is made to liberties which derive merely 

from shifting economic arrangements.’” (citation omitted)); Wisconsin v. Yoder, 406 

U.S. 205, 232 (1972) (“The history and culture of Western civilization reflect a strong 

tradition of parental concern for the nurture and upbringing of their children. This 

primary role of the parents in the upbringing of their children is now established 

beyond debate as an enduring American tradition.”).

44 Cab. for Health and Family Servs. v. K.H., 423 S.W.3d 204, 208 (Ky. 2014).

See also Yoder, 406 U.S. at 213–14 (protecting a parent's right to control the rearing, 

education, and religion of his or her child); Skinner v. Oklahoma, 316 U.S. 535, 541 

(1942) (holding that the right to raise a child is a “basic civil right” of a parent).
23

petitions for adoption and TPR. Appellate courts in Kentucky have consistently 

warned against such joint petitions.45 

Regardless of who initiated the proceedings to sever the tie that binds the 

legal and personal relationship between parent and child, the result is the 

same: the complete and total evisceration of that relationship most sacred.46 

TPR actions, in all their forms, are “the family law equivalent of the death 

penalty in a criminal case.”47 It does not, to me, reason that procedural 

protections would, on one hand, be heightened when the Commonwealth 

brings the proceeding, and, on the other hand, be lessened when a private 

individual brings the proceeding, because it is ultimately the action of the 

state—by statute permitting adoption absent a parent’s consent and by court 

order—that effectuates the termination of the parent/child relationship. The 

General Assembly created the procedure to terminate the right of a parent by 

way of adoption, and a trial court hearing the proceeding carries out the 

execution of that right. With such great power must come great scrutiny. 

This Court, as arbiter between the awesome power of the state to eviscerate the 

parent and child bond and the inherent right of parent to that bond, must 

 

45 See, e.g., Wright v. Howard, 711 S.W.2d 492, 496 (Ky. App. 1986) (calling 

dual petitions for adoption and TRP a “mistaken procedural approach.”).

46 Wright, 711 S.W.2d at 496 (holding that “the adoption itself terminates the 

non-consenting parent's parental rights.”); Moore v. Asente, 110 S.W.3d 336, 351 (Ky. 

2003) (recognizing that similar to “the final order in a TPR proceeding, a valid adoption 

judgment terminates the parental rights of the birth parent.”); KRS 199.520(2) (“Upon 

granting an adoption, all legal relationship between the adopted child and the 

biological parents shall be terminated except the relationship of a biological parent 

who is the spouse of an adoptive parent.”).

47 In re Smith, 77 Ohio App.3d 1, 16 (1991).
24

correct the Commonwealth when its actions are constitutionally deficient. A 

correction is required here, as this case makes apparent. 

To be perfectly clear, the matter under this Court’s consideration is not 

about whether a parent’s rights must be terminated prior to a consensual 

adoption. Nor is our review about who among the biological parent and 

prospective adoptive parents is better suited to raise, provide for, and love 

K.K.F.S. It is also beyond dispute that both the prospective adoptive parents 

and M.S.S. love this child. 

Instead, two key questions must be resolved by the issue presented in 

this case. First, what level of protection is afforded to non-consenting 

biological parents whose rights would be terminated by an adoption sought 

pursuant to the applicable statute? Second, are those protections 

constitutionally sufficient?

The General Assembly does not have the authority to create by statute 

the right of a private individual to extinguish the most sensitive and deeply 

rooted relationship in the human experience over the forceful and continued 

protestation of the party against whom that right would be taken without the 

due process owed to them. 

I would, therefore, hold that it is constitutionally impermissible for a 

court to terminate a parent’s rights over her protestation, without meaningful 

involvement of the Cabinet, 48 and without there first being an independent 

 

48 The Court of Appeals accurately described the Cabinet’s role in an adoption 

proceeding in A.F. v. L.B., 572 S.W.3d 64, 71 (Ky. App. 2019) (stating “The Cabinet has 

a role in adoptions. In accordance with KRS 199.510, the Cabinet must investigate 
25

hearing to terminate her parental rights. This is, in part, because the purpose 

of cabinet involvement is to verify that the adoptive parents are suitable, and 

the Cabinet’s investigation is mainly focused on the prospective adoptive 

parents—not on the natural parents. The report filed by the Cabinet in this 

case makes that abundantly clear, as it contains only cursory information 

about M.S.S. and a statement that M.S.S. did not provide a statement because 

doing so may appear as if she were in agreement with the adoption.

a. Standard of Review.

The record reflects that, though filed as a dual petition for adoption and 

TPR, this case was litigated under Kentucky Revised Statutes (KRS) 199.502. 

Therefore, this action is an involuntary adoption proceeding in which the 

adoptive parents have been granted an adoption pursuant to KRS 

199.502(1)(a). 

While normally appellate review of an involuntary termination or 

nonconsensual adoption proceeding “is confined to the clearly erroneous 

standard in Kentucky Rule of Civil Procedure (CR) 52.01 based upon clear and 

convincing evidence, and the findings of the trial court will not be disturbed 

 

and file a confidential report with the family court before a hearing can take place. 

KRS 199.515 (“After . . . the report required by KRS 199.510 ha[s] been filed, the court 

. . . may set a time for a hearing on the petition to be conducted in chambers in 

privacy.’; Baker v. Webb, 127 S.W.3d 622, 626 (Ky. 2004) (‘KRS 199.515 allows the 

court to conduct an independent hearing after the Cabinet has filed its investigation 

report). KRS 199.510(2) requires that ‘[t]he report of the cabinet . . . shall be filed with 

the court as soon as practicable but not later than . . . ninety (90) days after the filing 

date of the petition . . ..’ Its statutory purpose is to give some assurance to the court 

of the veracity of the prospective adoptive parents' allegations, that they are financially 

able and morally fit to adopt the child, that adoption is in the best interest of the child, 

and that the child is suitable for adoption. KRS 199.510(1).’”). 
26

unless there exists no substantial evidence in the record to support its 

findings,”49 “[b]ecause this case concerns a matter of constitutional 

construction or interpretation, we review it de novo.”

50 Further, when

interpreting a statute, we have a duty to accord to 

words of a statute their literal meaning unless to do so 

would lead to an absurd or wholly unreasonable 

conclusion. As such, we must look first to the plain 

language of a statute and, if the language is clear, our 

inquiry ends. We hold fast to the rule of construction 

that the plain meaning of the statutory language is 

presumed to be what the legislature intended, and if 

the meaning is plain, then the court cannot base its 

interpretation on any other method or source. In other 

words, we assume that the Legislature meant exactly 

what it said, and said exactly what it meant. Our 

rules of statutory construction, however, do not 

constrain us from commenting upon plainly-written 

statutes when oddities within them are exposed by the 

litigation before us.51

b. KRS 199.502, not KRS 625.050, controls.

“The law of adoption is in derogation of the common law. Nothing can be 

assumed, presumed, or inferred and what is not found in the statute is a 

matter for the legislature to supply and not the courts.”

52 “The right of 

adoption being purely of legislative origin, the courts will not, under our threedivision system of government, disturb the legislative arrangement, unless a 

 

49 V.S. v. Commonwealth, Cab. for Human Res., 706 S.W.2d 420, 424 (Ky. App. 

1986).

50 Pinto v. Robison, 607 S.W.3d 669, 672 (Ky. 2020) (citing Greene v. 

Commonwealth, 349 S.W.3d 892, 898 (Ky. 2011)).

51 Commonwealth v. Moore, 545 S.W.3d 848, 851 (Ky. 2018) (citation omitted).

52 Day v. Day, 937 S.W.2d 717, 719 (Ky. 1997) (citing Coonradt v. Sailors, 209 

S.W.2d 859 (Tenn. 1948)).
27

constitutional right is violated or it is repugnant to public policy.”

53 “We begin, 

as we always do, with the text of the statute.”

54

Under the current statutory scheme, the Commonwealth has established 

two methods by which a natural parent’s rights may be terminated without 

their consent. 

The first method is contained in KRS 625.050. As this Court recently 

opined, 

[t]he right of every parent to raise his or her own child 

is a fundamental right of utmost constitutional 

concern. While the Commonwealth of Kentucky may 

deprive a parent of this right when the circumstances 

require, KRS 625.090 ensures this right is protected 

by measures of due process. Namely, the statute 

establishes three substantive elements necessary for 

TPR, all of which the Commonwealth must prove by 

clear and convincing evidence, (a) starting with a 

finding of abuse or neglect by the parents, (b) then 

determining that TPR is in the child's best interest, 

and finally (c) that any one of the grounds for 

termination listed in KRS 625.090(2)(a)–(j) exists.55

Standing to bring suit pursuant to this statute is limited to “the cabinet, any 

child-placing agency licensed by the cabinet, any county or Commonwealth's 

attorney or parent.”

56

The second method is contained in KRS 199.500, et. seq., which permits 

adoption without the consent of the natural parent only in limited 

 

53 Roark v. Yarbrough, 411 S.W.2d 916, 918 (Ky. 1966).

54 Cab. for Health & Family Servs. v. K.S., 610 S.W.3d 205, 210 (Ky. 2020).

55 R. M. v. Cab. for Health & Fam. Servs., 620 S.W.3d 32, 38 (Ky. 2021) (internal 

citations and quotation marks omitted).

56 KRS 625.050(3).
28

circumstances. KRS 199.500 mandates that parental consent is essential in 

an adoption action, unless certain conditions are met, and states in pertinent 

part: 

(1) An adoption shall not be granted without the 

voluntary and informed consent [ . . . ] except that the 

consent of the living parent or parents shall not be 

required if:

(a) The parent or parents have been adjudged mentally 

disabled and the judgment shall have been in effect for 

not less than one (1) year prior to the filing of the 

petition for adoption;

(b) The parental rights of the parents have been 

terminated under KRS Chapter 625;

(c) The living parents are divorced and the parental 

rights of one (1) parent have been terminated under 

KRS Chapter 625 and consent has been given by the 

parent having custody and control of the child; or

(d) The biological parent has not established parental 

rights as required by KRS 625.065.57

KRS 199.502(1)(a)-(j) further expounds upon the consent exception created by 

KRS 199.500(1), and states in pertinent part that: “an adoption may be granted 

without the consent of the biological living parents of a child if it is pleaded and 

proved as part of the adoption proceeding that” certain conditions are met. 

For completeness, KRS 199.502(1)(a)-(j) states in full: 

(1) Notwithstanding the provisions of KRS 199.500(1), 

an adoption may be granted without the consent of the 

biological living parents of a child if it is pleaded and 

proved as part of the adoption proceeding that any of 

the following conditions exist with respect to the child:

 

57 Emphasis added. 
29

(a) That the parent has abandoned the child for a

period of not less than ninety (90) days;

(b) That the parent had inflicted or allowed to be 

inflicted upon the child, by other than accidental 

means, serious physical injury;

(c) That the parent has continuously or repeatedly 

inflicted or allowed to be inflicted upon the child, by 

other than accidental means, physical injury or 

emotional harm;

(d) That the parent has been convicted of a felony that 

involved the infliction of serious physical injury to a 

child named in the present adoption proceeding;

(e) That the parent, for a period of not less than six (6) 

months, has continuously or repeatedly failed or 

refused to provide or has been substantially incapable 

of providing essential parental care and protection for 

the child, and that there is no reasonable expectation 

of improvement in parental care and protection, 

considering the age of the child;

(f) That the parent has caused or allowed the child to 

be sexually abused or exploited;

(g) That the parent, for reasons other than poverty 

alone, has continuously or repeatedly failed to provide 

or is incapable of providing essential food, clothing, 

shelter, medical care, or education reasonably 

necessary and available for the child's well-being and 

that there is no reasonable expectation of significant 

improvement in the parent's conduct in the 

immediately foreseeable future, considering the age of 

the child;

(h) That:

1. The parent's parental rights to another child have 

been involuntarily terminated;

2. The child named in the present adoption 

proceeding was born subsequent to or during the 

pendency of the previous termination; and

3. The condition or factor which was the basis for the 

previous termination finding has not been 

corrected;
30

(i) That the parent has been convicted in a criminal 

proceeding of having caused or contributed to the 

death of another child as a result of physical or sexual 

abuse or neglect; or

(j) That the parent is a putative father, as defined in 

KRS 199.503, who fails to register as the minor's 

putative father with the putative father registry 

established under KRS 199.503 or the court finds, 

after proper service of notice and hearing, that:

1. The putative father is not the father of the minor;

2. The putative father has willfully abandoned or 

willfully failed to care for and support the minor; or

3. The putative father has willfully abandoned the 

mother of the minor during her pregnancy and up 

to the time of her surrender of the minor, or the 

minor's placement in the home of the petitioner, 

whichever occurs first.

These conditions are—word for word—the same grounds for involuntary TPR 

found in KRS 625.090(2)(a)-(j).58 

Thus, KRS 199.500(4) and KRS 199.502(1) allow an involuntary adoption 

if the grounds for involuntary termination of parental rights are met, and both 

statutes by either direct reference or by exact language contemplate that there 

is some relationship between the adoption statute and KRS Chapter 625.

However, the protections afforded to non-consenting parents under KRS 

199.502 are significantly lower than those afforded to parents whose rights are 

sought to be terminated pursuant to KRS Chapter 625. 

KRS 625.090 provides for a tripartite test which allows 

for parental rights to be involuntarily terminated only 

upon a finding, based on clear and convincing 

 

58 KRS 625.090(2) differs only to the extent that it contains an eleventh 

condition. 
31

evidence, that the following three prongs are satisfied: 

(1) the child is found or has been adjudged to be an 

abused or neglected child as defined in KRS 

600.020(1); (2) termination of the parent's rights is in 

the child's best interests; and (3) at least one of the 

termination grounds enumerated in KRS 

625.090(2)(a)-(j) exists.59

There is no such tri-partite test for an involuntary adoption—the only question 

that was and has been addressed in the instant case was whether the mother 

abandoned her child for ninety days in 2014—approximately five years before 

the TPR via adoption. 

The statute that governs TPR “in all of its forms” is a general statute, and 

the statute that governs non-consensual adoption—a discreet subset of TPR—

is a specific statute.60 

Thus, since a petition seeking adoption of a child 

against the child's biological parent’s wishes is a 

discrete subset of involuntary termination of parental 

rights cases, then the statute allowing appeals from 

adoption proceedings (KRS 199.560) is controlling 

because it is more narrowly focused than is the 

general statute forbidding appeals of orders denying 

involuntary termination of parental rights petitions 

(KRS 625.110).61

However, absent from the conditions enumerated by KRS 199.502 is the 

requirement that a proceeding to terminate parental rights take place and 

conclude before a petition of adoption is granted. That condition is present in 

KRS 199.500. Therefore, were the case to precede under KRS 199.500(1) 

 

59 K.H., 423 S.W.3d at 209.

60 C.M.C. v. A.L.W., 180 S.W.3d 485, 489 (Ky. App. 2005).

61 Id. at 490 (citing DeStock No. 14, Inc. v. Logsdon, 993 S.W.2d 952, 959 

(Ky.1999); 73 Am. Jur. 2d Statutes § 170 (2001)).
32

rather than KRS 199.502, then the procedural protections of KRS Chapter 625 

would be in full force. The result is a constitutional end-run created by a 

statutory loophole. 

Contrary to the majority’s contention that we have failed to identify how 

there is any meaningful procedural difference between the two actions, this 

case creates a precedent that any person who has custody of a child can 

prevent that child’s natural parent from seeing the child for ninety days and 

then seek to sever the legal and emotional tie between parent and child without 

a showing of unfitness beyond parental absence for a ninety-day period and 

without any meaningful input from the Cabinet. Whereas, if the case were to 

proceed as a TPR, only the designated state actor may seek to terminate 

parental rights. Then there must be a determination as to the parent’s 

unfitness to care for the child before that parent’s rights to the child are 

extinguished. The majority’s opinion today crafts the path for avoiding the 

careful work of the state in investigating and verifying when or if a parent is 

unfit. This path runs roughshod over the individual liberty rights of biological 

parents. 

c. KRS 199.502 impermissibly denies natural parents due process 

under the Kentucky Constitution. 

A statute carries a strong presumption that it is constitutional.62 When 

faced with a challenge to the constitutionality of a statute, it is the appellate 

court's responsibility to “draw all reasonable inferences and implications from 

 

62 Wynn v. Ibold, Inc., 969 S.W.2d 695 (Ky. 1998).
33

the act as a whole and thereby if possible sustain the validity of the act.”63 Of 

course, statutes must be constitutionally sufficient to withstand the review of 

this Court.

64 

While the U.S. Constitution and federal courts’ interpretation of the U.S. 

Constitution are useful guideposts in my analysis, my dissent is based on the 

additional rights that flow from the Kentucky Constitution. The United States 

Constitution recognizes the minimum protections afforded to individual rights. 

Our Constitution supplies protection above and beyond that federal floor.65

Nevertheless, guidance from the U.S. Supreme Court proves useful to our 

review of this issue.

Several principles emerge from the federal framework. A natural parent’s 

right is a fundamental liberty interest, and shall not be disturbed by the state 

“absent a powerful countervailing interest[.]”

66 When fundamental liberty 

interests are implicated, the due process clause of the Fourteenth Amendment 

 

63 Graham v. Mills, 694 S.W.2d 698, 701 (Ky. 1985).

64 Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 209 (Ky. 1989).

65 See, e.g., Commonwealth v. Wasson, 842 S.W.2d 487, 492 (Ky. 1992), 

overruled on equal protection grounds by Calloway Cnty. Sheriff's Dep't v. Woodall, 607 

S.W.3d 557 (Ky. 2020) (stating “under our system of dual sovereignty, it is our 

responsibility to interpret and apply our state constitution independently. We are not 

bound by decisions of the United States Supreme Court when deciding whether a state 

statute impermissibly infringes upon individual rights guaranteed in the State 

Constitution so long as state constitutional protection does not fall below the federal 

floor, meaning the minimum guarantee of individual rights under the United States 

Constitution as interpreted by the United States Supreme Court.” (internal citations 

omitted)).

66 Stanley, 405 U.S. at 651.
34

“guarantees more than fair process.”67 The due process clause also has a 

substantive aspect, which protects “individual liberty against certain 

government actions regardless of the fairness of procedures used to implement 

them.”68 Therefore, “the Due Process Clause of the Fourteenth Amendment 

protects the fundamental right of parents to make decisions concerning the 

care, custody, and control of their children.”69 And, “[t]he fundamental liberty 

interest of natural parents in the care, custody, and management of their child 

does not evaporate simply because they have not been model parents or have 

lost temporary custody of their child to the State.”

70

While the U.S. Supreme Court has not articulated a clear standard of 

review in the context of parental rights cases, when fundamental rights such as 

these are implicated strict scrutiny is the generally employed standard.71 

However, the great weight of the protections of the due process clause are only 

 

67 Washington v. Glucksberg, 521 U.S. 702, 719–20 (1997) (holding that the due

process clause of the Fourteenth Amendment contains a substantive component that 

“provides heightened protection against government interference with certain 

fundamental rights and liberty interests”).

68 Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (internal quotation 

marks and citation omitted).

69 Troxel v. Granville, 530 U.S. 57, 66 (2000).

70 Santosky, 455 U.S. at 753–54.

71 Troxel, 530 U.S. at 80 (Thomas, J., concurring) (stating “[t]he opinions of the 

plurality, Justice Kennedy, and Justice Souter recognize such a right, but curiously 

none of them articulates the appropriate standard of review. I would apply strict 

scrutiny to infringements of fundamental rights.”); Reno v. Flores, 507 U.S. 292, 301–

302 (1993) (reaffirming that due process “forbids the government to infringe certain 

fundamental liberty interests [. . .] unless the infringement is narrowly tailored to 

serve a compelling state interest”); Cf. Troxel, 530 U.S. at 69 (holding only that judges 

must give some, undefined “special weight” to the views of fit parents before overriding 

their judgment). 
35

in full effect when a parent has developed the relationship between parent and 

child and where a parent has not been deemed unfit.72 In the context of 

termination proceedings, before a state may impair a natural parent’s right to 

the custody, care, and control of this child, there must be an independent 

adjudication of unfitness.73

With these overarching principles in mind, I now turn to the protections 

afforded by our state constitution. 

The Kentucky Constitution provides that all Kentuckians “are, by nature, 

free and equal, and have certain inherent and inalienable rights,” including 

“the right of enjoying and defending their lives and liberties.”74 Section 2 of the 

Kentucky Constitution further guarantees individual liberty by forbidding the 

Commonwealth from exercising “absolute and arbitrary power over the lives, 

liberty and property” of its citizens. This Court has recognized that the right to 

parent is jealously guarded by the Kentucky Constitution.75 While the current 

statutory scheme for TPR offers adequate constitutional protections, the lack of 

the same level of protection offered in non-consensual adoption is 

constitutionally untenable. 

 

72 Lehr v. Robertson, 463 U.S. 248, 260-61 (1983).

73 Stanley, 405 U.S. at 657–58 (holding “[t]he State's interest in caring for 

Stanley's children is de minimis if Stanley is shown to be a fit father. It insists on 

presuming rather than proving Stanley's unfitness solely because it is more 

convenient to presume than to prove. Under the Due Process Clause that advantage 

is insufficient to justify refusing a father a hearing when the issue at stake is the 

dismemberment of his family.”).

74 KY Const. § 1.

75 See, e.g., K.S., 610 S.W.3d at 211.
36

As this Court recently stated, “the fact that the General Assembly 

decided to supply litigants with more process than is constitutionally required 

in one context does not” preclude this Court’s review of the protections offered 

in another.76 The duty of this Court to do so is deeply rooted in our history: 

The judiciary has the ultimate power, and the duty, to 

apply, interpret, define, [and] construe all words, 

phrases, sentences and sections of the Kentucky 

Constitution as necessitated by the controversies 

before it. It is solely the function of the judiciary to so 

do. This duty must be exercised even when such 

action serves as a check on the activities of another 

branch of government or when the court's view of the 

constitution is contrary to that of other branches, or 

even that of the public.77

While I am mindful of the fact that “[a]s the judicial branch, we are not at 

liberty to write into a statute that which does not exist,”78 we are empowered to 

recognize and call out statutory gaps and their constitutional deficits.

This Court has had rare occasion to address the interrelationship 

between these two statutes and of resulting inequitable dichotomy, and has 

never considered the constitutionality of the statute. 

In Smith v. Wilson, our predecessor Court was faced with the same type 

of dual TPR/adoption petition now before this Court.79 Adoptive parents 

sought to terminate the rights of a child’s mother without her consent, and the 

Jefferson Circuit Court ordered termination pursuant to KRS 199.600(1)—the 

 

76 Id. at 213.

77 Rose, 790 S.W.2d at 209.

78 Blackaby v. Barnes, 614 S.W.3d 897, 903 (Ky. 2021).

79 269 S.W.2d 255 (Ky. App. 1954).
37

predecessor statute to KRS Chapter 625—and adoption pursuant to KRS 

199.500.80 The Court held that the adoptive parents lacked standing to pursue 

the action to terminate the parental rights without the consent of the mother.81 

The Smith Court further held that the adoption, which had the same result as a 

TPR action, was permissible.82 The Court stated: 

The case was primarily and purposefully instituted to 

adopt the child, KRS 199.470, although it was coupled 

with a proceeding for the involuntary termination of 

parental rights. KRS 199.600. As we have held above, 

this latter proceeding could not be maintained by the 

private individuals. But the judgment of adoption in 

this particular case substantially accomplishes the 

same end, for KRS 199.530 declares, inter alia, that an 

adopted child ‘shall be considered, for purposes of 

inheritance and succession and for all other legal 

considerations, the natural, legitimate child of the 

parents adopting it’ and the child is freed from all legal 

obligations of maintenance and obedience to its natural 

parents. KRS 199.530(2).83

Justice Stewart’s dissent makes clear the absurdity of such a result. He stated 

in full: 

KRS 199.600(5) specifies the persons who may 

institute an action to terminate parental rights under 

KRS 199.600(1), and the majority opinion correctly 

 

80 Id. at 256.

81 Id. at 257 (stating “[w]hen the extreme character of the present action is 

considered—interference with or severance of the natural rights of a parent and 

making the child the ward of the State—we think that in providing that the action 

‘may be instituted’ the legislative intent was to vest exclusive discretionary power in 

the designated public officers. This is a matter of public and not private concern. 

Therefore, we are of [the] opinion the court should have sustained the plea of absence 

of authority in the plaintiffs to maintain this part of the two-fold action.”).

82 Id. at 258 (stating “[t]he welfare of a child such as this is the manifest 

objective of the statute under which the proceeding has been maintained. That 

objective is attained by the judgment of adoption.”).

83 Id. 
38

holds that plaintiffs are excluded from those named in 

the first-mentioned subsection and therefore could not 

maintain the action in this respect. The inevitable 

result is that the parental rights of the mother, 

defendant below, were not and have not been severed 

as to the child. However, the opinion proceeds to hold 

that plaintiffs may nevertheless adopt the child and 

this can only mean that the adoption is approved by 

this Court with the natural parent still retaining all of 

the rights of parenthood in and to the child. Such a 

result is repugnant to the plain requirements of KRS 

199.600, which control the procedure in this case, 

and, more than that, the letter and spirit of the 

statutory provisions controlling adoptions under the 

Division of Child Welfare of the Kentucky Children's 

Bureau have been summarily brushed aside.84

In Roark v. Yarbrough, our predecessor Court—again faced by dual 

petition for adoption and TPR—acknowledged the statutory loophole, and 

stated as follows:

the plaintiffs are not entitled to the relief sought of 

terminating the parental rights as such because they 

do not belong to that class of persons set out in KRS 

199.600(1), but that they are entitled to adopt the 

children as they have alleged and proven pursuant to 

KRS 199.500(4) that certain facts set out in KRS 

199.600(1) exist with respect to the said children. 

Thus, it is apparent counsel for the grandparents and 

the judgment of the circuit court have threaded the 

needle of our adoption laws. The right of adoption 

being purely of legislative origin, the courts will not, 

under our three-division system of government, 

disturb the legislative arrangement, unless a 

constitutional right is violated or it is repugnant to 

public policy. Adoption may be harsh and drastic in 

some instances where a parent is deprived of his child 

in violation of his sacred and enduring natural rights, 

but the legislature has recognized the supremacy of 

guardianship of the State over that of the parent.85

 

84 Id. at 258-59 (internal citations omitted).

85 411 S.W.2d at 918 (emphasis added).
39

Of course, at the time Roark was under consideration, the contours of federal 

due process rights had just begun to take shape. 

Decisions from the Court of Appeals concerning dual petitions for TPR 

and adoption likewise have not contemplated the constitutional nature of these 

cases. In O.S. v. C.F., the Court acknowledged the applicability of the Santosky 

standard of proof, and held:

Parental rights are so fundamentally esteemed under 

our system that they are accorded due process 

protection under the 14th Amendment to the United 

States Constitution, when sought to be severed at the 

instance of the state. Under Santosky, the 14th 

Amendment prescribes the standard controlling the 

judgment of the “fact-finders” in severing the rights. 

That standard is one of “clear and convincing 

evidence.” It is this standard which Santosky imposes 

upon the states. States may have a more rigid or 

higher standard but they may not have a less stringent 

test. In Santosky, the U.S. Supreme Court set the 

minimum.86

However, the Court stopped short of articulating what protections are afforded 

to parents who are contesting an adoption. 

In Wright v. Howard, the Court of Appeals was once again faced with a 

dual petition for TPR and adoption.87 The Court determined that when such 

dual petitions are filed, they were to be treated only as a petition for adoption, 

since adoption terminated the rights of the natural parents as recognized in 

 

86 655 S.W.2d 32, 33 (Ky. App. 1983).

87 Wright, 711 S.W.2d at 495. 
40

Jouett v. Rhorer.88 However, the constitutional aspect of the effect of the 

termination was not raised and was not considered. 

In an unpublished opinion, the Court of Appeals broached the 

constitutional question now squarely before this Court. In K.N. v. R.P., the 

Court of Appeals recognized that constitutional safeguards must be 

implemented. The court stated in relevant part: 

Although the State did not initiate the proceedings at 

issue, the nature of the parents’ and children’s 

fundamental rights remain unaltered. The same 

procedural safeguards mandated in Santosky apply 

regardless of whether one is threatened with the loss 

of his or her parental rights pursuant to . . . the 

involuntary termination statute, or by adoption of his 

or her child without the parent’s consent. The result 

to the natural parent is the same in either proceeding, 

that is, total deprivation of any legal or personal 

connection with the child. Moreover, because judicial 

action was required for the termination of parental 

rights, it is evident that the State did have involvement 

in severing these rights.

Kentucky Revised Statute 199.502 does not require 

that a proceeding to terminate parental rights take 

place before a petition of adoption is granted. Rather, 

and as the language of the statute specifically states, 

an adoption may be granted without the consent of the 

biological parents of a child if it is pleaded and proved 

as part of the adoption proceedings that any of a

number of conditions exists. Termination of parental 

rights to the child or children sought to be adopted is 

not one of the enumerated conditions. Certainly, an 

adoption without the consent of living biological 

parents effectively terminates the biological parents' 

rights; therefore, constitutional safeguards must be 

implemented.89

 

88 Id. (citing Jouett v. Rhorer, 339 S.W.2d 865, 868 (Ky. 1960)).

89 No. 2007-CA-000181-MR, 2008 WL 275106, at *10 (Ky. App. Feb. 1, 2008)

(internal citations, quotation marks, and brackets omitted). 
41

Cases concerning the parent/child relationship strike at the core of our 

society. The statutory backdoor that has empowered private individuals to 

usurp the right of a natural parent is repugnant to the due process afforded by 

the state constitution. I would hold that the substantive due process 

guaranteed by the Kentucky Constitution requires a separate hearing on the 

termination of parental rights before a court can enter an order effectuating a 

non-consensual adoption. This is a logical extension of the United States 

Supreme Court’s holding in Stanley v. Illinois,

90 which required at least a 

hearing to determine unfitness before a state could place a child in foster care 

over a unwed parent’s protestation, and is rooted in the paramount nature of 

the relationships at issue in the case at bar. Of course, the only parties with 

standing, pursuant to KRS 625.050(3), to petition for such a hearing are “the 

cabinet, any child-placing agency licensed by the cabinet, any county or 

Commonwealth’s attorney or parent.” Therefore, before a prospective adoptive 

parent can proceed with an involuntary adoption, a court of competent 

jurisdiction must first terminate the rights of the natural parents. 

d. The trial court’s determination was clearly erroneous. 

Notwithstanding and beyond the constitutional issues raised by this 

case, I also disagree with the majority and the majority in the Court of Appeals 

in their assessment of the trial court’s findings of fact. As the majority 

 

90 Stanley, 405 U.S. at 651. 
42

correctly notes, “a termination of parental rights will be reversed only if it was 

clearly erroneous and not based upon clear and convincing evidence.”91 “Clear 

and convincing proof does not necessarily mean uncontradicted proof. It is 

sufficient if there is proof of a probative and substantial nature carrying the 

weight of evidence sufficient to convince ordinarily prudent-minded people.”92

The sole ground for terminating M.S.S.’s parental rights and granting the 

adoption was based upon KRS 199.502(1)(a), which requires the court to find 

by clear and convincing evidence that “the parent has abandoned the child for 

a period of not less than ninety (90) days.” The trial court found that, because 

M.S.S. did not contact the child in 2014-2015, during which time she was not 

incarcerated, and because she had instead been “involved in substance use 

and abuse that led her into a wretched lifestyle that did not include this child 

or help her to be a capable and effective parent for this child,” she had 

abandoned the child. Essentially, the trial court told M.S.S. that the vast 

improvements she had made for her life in the previous five years—including 

her recovery from SUD and the efforts she had undertaken to reestablish her 

relationship with her child—were “too little too late.” 

Abandonment is not defined by either KRS Chapter 199 or KRS Chapter 

625. This Court has defined abandonment “as ‘neglect and refusal to perform 

 

91 M.A.C. v. E.A., No. 2020-CA-0087-ME, 2021 WL 2878347, at *2 (Ky. App. 

July 9, 2021) (citing Commonwealth, Cab. for Health and Family Servs. v. T.N.H., 302 

S.W.3d 658, 663 (Ky. 2010); CR 52.01).

92 M.P.S. v. Cab. for Human Res., 979 S.W.2d 114, 117 (Ky. App. 1998) (citing 

Rowland v. Holt, 70 S.W.2d 5, 9 (1934)).
43

natural and legal obligations to care and support, withholding of parental care, 

presence, opportunity to display voluntary affection and neglect to lend support 

and maintenance . . . it means also the failure to fulfill responsibility of care, 

training, and guidance during the child's formative years.’”

93 A finding of 

abandonment must be supported by clear and convincing evidence that shows 

a willful intent “to forego all parental duties and relinquish all parental claims 

to the child.”94 When a parent has been incarcerated, that incarceration 

should not be considered a factor in the court’s abandonment analysis, but 

instead should be considered when making a determination as to the best 

interests of the child.95

As the record reflects, there is no doubt that M.S.S. has struggled with 

“substance abuse,” as the trial court labeled it, or SUD as it is now known. 

She was incarcerated as an eighteen-year-old related to issues stemming from 

SUD. She was very candid about her struggle with substance use before the 

trial court and in her interviews with the guardian ad litem (GAL). There is also 

no doubt that, because of her addiction, she has been incarcerated for much of 

the early years of the child’s life. She would send the child letters while 

 

93 Simms v. Est. of Blake, 615 S.W.3d 14, 24 (Ky. 2021) (quoting Kimbler v. 

Arms, 102 S.W.3d 517 (Ky. App. 2003)). 

94 O.S., 655 S.W.2d at 34 (citing 2 Am. Jur.2d Adoption § 32 (1962)). 

95 Cab. for Human Res. v. Rogeski, 909 S.W.2d 660, 661 (Ky. 1995) (holding 

“[a]lthough incarceration for an isolated criminal offense may not constitute 

abandonment justifying termination of parental rights, incarceration is a factor to be 

considered, particularly so in a case such as this because KRS 625.090(2)(b) specifies 

that ‘acts of abuse or neglect toward any child in the family’ is a factor that circuit 

courts shall consider in determining the best interest of the child who is the subject of 

the termination action.”).
44

incarcerated, but the prospective adoptive parents threw them away without 

opening them and prevented the child from knowing of them. 

In 2015, M.S.S. was convicted of promoting contraband and served two 

and a half years. She testified that she has been sober since 2015, which she 

credits to moving away from her family, who also have a long history of 

addiction. She was released in August of 2017. Prior to her most recent 

incarceration, her visitation with the child was sporadic at best. Following her 

release in August 2017, M.S.S. has worked diligently to re-establish her life. 

She has maintained the same job, began and maintained therapy, has 

maintained a stable relationship with her significant other, and has attempted 

to contact her child. Those attempts were thwarted by the prospective adoptive 

parents. I can only assume from the record that as a result of those thwarted 

attempts, M.S.S. resorted to filing an action to establish visitation in February 

of 2018.96 

The GAL submitted a thorough post-hearing report to the trial court 

recommending against “the termination of parental rights” as to M.S.S. She 

reported that M.S.S. has actively sought to be in her child’s life. And, the GAL 

reported that Dr. Bruce Fane, a psychologist who evaluated both M.S.S. and 

the child, stated that the mother could be reintroduced to the child, and that it 

would be beneficial to the child to have a relationship with her mother. 

 

96 Civil Action No. 18-CI-173.
45

I would hold that KRS 199.502 is unconstitutional to the extent that it 

permits private individuals to seek to involuntarily terminate the rights of 

parents, and, secondarily that the trial court erred in finding that M.S.S. 

abandoned the child. Doing so would not upset the status quo: J.E.B. and 

D.J.B. have permanent custody of the child through a separate order, the child 

would remain in their home, and M.S.S. would still be empowered to litigate 

her right to visitation with her biological child. Therefore, I dissent. 

Conley, J., joins.

COUNSEL FOR APPELLANT:

Steven O. Thornton

COUNSEL FOR APPELLEES:

D. Bailey Walton

Walton Law, P.L.L.C.